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Ms K and the Employment Appeals Tribunal (FOI Act 2014)

Case Number: 170113

Whether the EAT was justified in refusing the applicant's request for further records relating to the publication and circulation of unredacted EAT decisions under section 15(1)(a) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The background to this review is that the EAT published, in unredacted form, details of a decision it made in respect of a case taken by the applicant under the Unfair Dismissals Acts 1977 to 2007. On 14 January 2017, the applicant submitted a request to the EAT in the form of ten separate questions relating to the publication and circulation of unredacted EAT decisions. In its response of 10 February 2017,the EAT informed the applicant that as some of the questions asked were requests for responses as opposed to requests for records, they were not covered by the FOI Act. Nevertheless, it went on to provide responses to all ten questions. The EAT also refused access to certain records on the ground that they are already in the public domain or are not held by it.

On 13 February 2017, the applicant sought a review of the EAT's decision in respect of parts 3, 4, 5 and 9 of her request. On 6 March 2017, the EAT issued its internal review decision, wherein it affirmed its original decision. It stated that the questions posed were not valid requests for records and even if they were, no relevant records exist. It also stated that the questions could not be considered as requests for statements of reasons under section 10. The applicant sought a review by this Office of that decision on 6 March 2017.

I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to communications between the applicant and the EAT as outlined above and to the correspondence between this Office and both the applicant and the EAT on the matter.

Scope of Review

During the course of this review, the applicant clarified that she had not requested a statement of reasons under section 10. She confirmed that she was seeking access to records covered by parts 3, 4 and 5 of her request. For ease of reference, I have set out the details of those three questions, as posed by the applicant, below:

3. "... what is the Tribunals public interest in disclosing the personal details i.e. full identity of Claimants and Respondents attached to unredacted decisions of the Tribunal to mailing lists"4. "... does the Mailing lists include any email addresses abroad and if not, how the EAT provide and ensure that no personal details of claimants and respondents showing their full identity, attached to unredacted decisions are sent abroad"5. "...why the Tribunal have no security measures in place for the disclosure of such an amount of personal details of claimants and respondents personal details showing full identity attached to unredacted EAT Tribunal decisions, to mailing lists and general public"

Accordingly, this review is concerned solely with the question of whether the EAT was justified in refusing parts 3 to 5 of the applicant's request under section 15(1)(a) of the FOI Act on the ground that no relevant records exist or can be found.

Analysis and Findings

As the EAT correctly explained to the applicant, while the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. As such, I must consider whether the EAT holds records that provide answers to the specific questions posed by the applicant, as follows.

Does the EAT hold records:

that identify its public interest in disclosing personal details when issuing decisions through its mailing lists? (part 3)

that indicate how the EAT ensures that personal details of claimants and respondents are sent abroad, if that is the case? (part 4)

that indicate why the EAT has no security measures in place for the disclosure of personal details when issuing decisions to the public or through mailing lists? (part 5)

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In its decision on the request, the EAT provided background information to the publication of its decisions. It holds its hearings in public, maintains a register of its determinations and publishes its determinations online. The public remit of the EAT is provided for in the Redundancy (Redundancy Appeals Tribunal) Regulations 1968 (SI No. 24 of 1968). Regulation 11 provides that hearings be held in public, while Regulation 17(4) provides that its decisions are entered in a register which must be open for inspection by any person. Copies of determinations are made for those members of the public who request them. As demand increased, the EAT considered it more efficient to compile a list of interested parties, generally consisting of members of employment rights practitioners, the legal fraternity and the media, and to email copies of the determinations to them on a regular basis. The EAT stated that it corresponded with the Office of the Data Protection Commissioner seeking

his views regarding the proposed system and obtained his approval for operating same and on the basis of this advice, it proceeded to operate this system up until April 2014.

I wish to stress that the appropriateness, or otherwise, of the EAT's process of publishing determinations in whatever format it sees fit is not a matter that this Office can examine. As I have outlined above, our remit in this case is confined to considering whether the EAT was justified in deciding that it holds no records that provide answers to the specific questions posed, as outlined above. On this point, the EAT made submissions to this Office regarding the adequacy of the searches conducted in response to the applicant's request.

In relation to part 3 of the applicant's request, the EAT stated that the mailing list system referred to operated between 2011 and 2014. It stated that the public interest in copying EAT determinations to the mailing list was set out in replies to previous requests from the applicant and that a copy of the relevant originating legislation which provided for the public nature of EAT determinations was also given to the applicant.

In searching for records relevant to the request, the EAT stated that EAT case files were discounted as they were not deemed to contain any such records, comprising as they do material relating to individual EAT cases. All EAT manual administrative files were then scanned and those deemed likely to hold such records relating to the mailing list in question were retrieved and searched manually. The electronic file database was similarly scanned for any folders likely to contain relevant documents relating to the mailing list in question, and those folders were then searched electronically. The only records found in the search were contained in the Data Protection file, which were released to the applicant. The EAT stated that it considers its statutory obligation to make determinations available on its public register to refer to entire unredacted determinations. Accordingly, its view is that any consideration of the issue of public access to its determinations implicitly includes the issue of personal details being made available.

In relation to parts 4 and 5, the EAT sated that similar searches were conducted. It stated that full details of the email addresses contained in the mailing list were retrieved electronically and given to the applicant in a previous request and that no other relevant records could be found. The EAT considers that it has "both the statutory authority and permission from the Data Protection Commissioner to make the determinations public". The EAT submitted that, accordingly, it was not considered necessary to put in place any security measures and so no record of such measures would exist. I find no basis for disputing these statements. While the applicant considers the EAT's position in this regard to be unsatisfactory, this Office has no role in examining such matters.

Having regard to the EAT's explanation of the background to its publication of determinations and to the details of the searches actually undertaken in an effort to locate relevant records, I am satisfied that it has carried out all reasonable steps to locate relevant records. I find, therefore, that the EAT was justified in refusing access to further relevant records under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the EAT to refuse the applicant's request under section 15(1)(a) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.